1. Provide an accurate and complete chart to the family’s attorney the first time they ask and get yourself an exact copy to use in defending the claim.
In long-term care, we live and die by our medical charts. Often the very first sign of potential litigation is a medical records request. I cannot emphasize enough the importance of making sure that your client provides a complete and accurate chart to the requesting attorney. Equally important, when you are hired, ask your client to provide you an accurate and exact duplicate of the original. I have spent countless hours comparing the chart provided to the plaintiff’s attorney to the chart provided by the client after litigation ensued, and then to the original, and all three were different! The fact of the matter is that with hundreds of pages of documents kept in various places in your client’s facility and with notes by numerous people, pages go missing. One page missing from your client’s chart can affect the value of your case by six figures; I have seen it happen.
2. Counsel your clients to set realistic expectations with family members before admission.
After a lawsuit is filed, I often take the depositions of the family members who admitted the resident to the facility. It is rare to find family members who are objective about the long-term prognosis of their loved one. They are rightfully filled with hope, which often results in unrealistic expectations for the likely outcome for their elderly loved one. Although the conversations are never easy, it has been my experience that frank and realistic discussions at the time of admission with the family and the doctor cut down on lawsuits significantly. When family members understand that the resident is likely to develop pressure sores or to fall, they are not shocked when that happens. I have seen lots of family guilt inappropriately directed at the caregivers who care for their loved one. Advise your clients that helping families have realistic expectations is the very best way to save on litigation costs.
3. Add an arbitration agreement to your client’s admission packet.
Arbitration should be considered as an alternative to an extensive court proceeding. There is most often no right to appeal, except in the instance of fraud, so both parties get closure more quickly and it is less costly. I have arbitrated three nursing homes cases, and in all three, the family and facility both felt it was a fair and efficient process to resolve their dispute. In addition, the litigation costs were cut by about one-third.
4. Counsel your clients to treat their quality assurance documents like quality assurance documents.
We spend a lot of time in nursing home litigation battling over which documents should be protected by the quality assurance privilege and which are not and must be produced. I see this often with incident reports, incident investigations, skin and weight committee meeting minutes, quality assurance meeting minutes, safety committee meeting minutes, employee reprimands, and the list goes on. The quality assurance laws vary from state to state, and you should consult applicable state law in your jurisdiction about how to best protect your client’s quality assurance documents. However, if your client’s policy and procedures are clear and adhered to, your client will save money.
5. Advise your clients to keep families informed.
In well over half of the lawsuits I defend, families testify under oath that they did not know about significant events that occurred with their loved ones within a reasonable time after they happened. Sometimes these family members tell me they did not know until the hospital told them (for example, that their loved one has a pressure sore). Sometimes they tell me that they did not know a significant event happened until they heard it several weeks later from a nurse at the facility (like an elopement). Sometimes they tell me they did not know a significant event happened until they sued and got a copy of the chart and saw it there (like a fall). By the way, all three of those are real examples from my cases in the last year. Emphasize to your clients that when families understand what is going on in a timely way, they are less likely to sue.
6. When you schedule caregiver interviews at the facility, set a good schedule and keep them on track.
A great defense of a long-term-care case involves meeting with each of the key caregivers who appear in the resident’s chart. In my firm, we send a list of the key caregivers to the facility and ask the facility to schedule caregiver interviews in approximately 25-minute increments and to provide us with the last known addresses of the key former caregivers. The best way to keep costs down is to interview night-shift caregivers during the day, make sure everyone comes at the appointed time, and get the schedule from your client at least a week ahead of time. We can sometimes clip through 15 or 20 caregiver interviews in one day if we are dealing with a super-organized facility. It gets costly when we have to come back four or five times to pick up the stragglers who do not come in at the appointed hour. We do not mind doing it to accommodate, but it is just more expensive for the clients.
7. Encourage your clients to promptly respond to interrogatories and requests for production of documents in an organized and timely fashion.
In any long-term-care lawsuit, you know that plaintiff’s counsel will send you an extensive set of interrogatories and document requests, so I tell the client this up front and establish a procedure and point of contact for the client to follow in responding. As you know, discovery is burdensome and expensive, but by getting ahead of the game, you can reduce those costs. When I receive documents from a facility in a timely fashion and the documents are organized by question number in file folders and labeled, the costs of discovery go down dramatically. When I receive faxes piecemeal over the course of three months, not labeled, not identified, and incomplete, the costs of discovery go up substantially as we chase down documents and try to understand what has been sent.
8. Counsel your clients to show sympathy after a major event or a resident’s passing.
We live in such a litigious world that people are afraid to express sympathy for fear of admitting fault. I have litigated many long-term-care cases in which the family expressed a great deal of anger during the lawsuit that nobody ever expressed sympathy for what happened to their loved one. Flowers, cards, and, most important, in-person visits and kind words go a long way with families. It often dissuades them from suing because they recognize that your client really loved their family member just as they did. In one of my arbitrations, we were leaving the room after a hard day of testimony, and my client said to the family, “I am so sorry for your loss.” The response was “Thank you. You are the first person from the facility to say that to me.”
9. Encourage early case evaluation and resolution.
Most often, as attorneys, we control the pace of the case, and when you encourage your client to be open to early evaluation and resolution, costs go down substantially. It has been my experience that most cases can be evaluated and a reasonable value determined in the first three to six months. If a pass at resolution can be made early in litigation, costs are cut.
10. Instruct your client to organize “the shed”!
Al Capone’s body is probably buried in a nursing home shed somewhere, and that is why it has never been found. When I ask for documents and I hear the infamous words “We’ll have to look through the shed,” I know that things are about to become expensive. Sheds, in my experience, are where unorganized documents go to get lost. When the going got tough, I have sat in sheds hunting for documents myself. As you can imagine, that is not cheap.
Long-term-care litigation is challenging and can be very expensive, but the advice in these 10 simple steps will enable your client to reduce its litigation costs and, in the process, achieve a better outcome.
Keywords: litigation, health law, long term care, arbitration, risk management, healthcare
Christy Crider is a shareholder in the Nashville, Tennessee, office of Baker, Donelson, Bearman, Caldwell & Berkowitz.